Cumper and Rodgers

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Equality for All? Higher Education and the Disability Discrimination Act 1995

Peter Cumper LLB, LLM*

and

M E Rodgers LLB, BA*

Copyright © 1997 Peter Cumper and M E Rodgers.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

*The authors would like to express their thanks to Jann Lennard at Canberra University, Australia, for her kind assistance in relation to the Australian discrimination legislation.

Summary

This article considers the impact of the Disability Discrimination Act 1995 on higher education and questions whether existing legislation provision is adequate to meet the needs of students who are disabled.

Introduction

The Disability Discrimination Act 1995 came into force on 2 December 1996. Whilst it is the first legislative measure primarily to tackle discrimination against disabled people, it has been strongly attacked by the representatives of most groups representing the disabled as not going far enough to represent their interests.(1) However, if there is one thing upon which supporters and critics of the Act are agreed upon, it is that the enactment of this legislation cannot immediately put an end to discrimination against the disabled and will not suddenly change negative social attitudes to disability.

As Victoria Scott, a disabled rights activist and the daughter of former Minister for the Disabled Nicholas Scott points out: "Every day, disabled people receive messages about their value to society: that they are unwanted, a burden, unfit to be a worker, partner, parent or politician" (The Big Issue, 26 July 1994). In this article we will consider the message that society is sending to the disabled about their fitness to study at Institutions of Higher Education.

The United Kingdom prides itself on the fact that academic merit is normally the sole criterion for assessing whether someone is entitled to embark upon a course in higher education. A student's ability, enthusiasm and capacity to learn rather than his/her race, colour, religion, appearance or sexual orientation are the factors which determine whether s/he take a place on a university course. However, where a student is in a wheelchair and is physically denied access to areas of a university, is visually impaired but there is nothing (or at least very little) of the library's collection in Braille, or suffers from a hearing impairment yet most of the university lecture theatres and teaching rooms lack facilities for the plugging in of a hearing aid or the provision of access to a hearing loop, this choice is merely illusory.

The latter may explain why there are approximately only three hundred hearing impaired students presently in higher education in the United Kingdom. Commenting on these figures during the Lords stage of the Disability Discrimination Bill, Lord Ashley suggested that this figure "speaks volumes about the amount of unwitting or deliberate discrimination in British universities" (HL Deb, vol 564, col 1987). In the absence of detailed empirical research documenting the extent and nature of discrimination against disabled people in higher education, much of the evidence which would provide corroboration of Lord Ashley's claim is anecdotal. However, it seems reasonable to conclude that even if direct discrimination against the disabled in higher education is unusual, indirect discrimination (e.g., mobility problems caused by inaccessible buildings etc.) is a problem and is perceived as such, particularly amongst the disabled themselves.

The purpose of this article is to consider the potential impact of the Disability Discrimination Act 1995 on higher education. With a mere three sections devoted to education in the legislation (Part IV), it was clear from the start that the Act's contribution to this area was always likely to be rather modest. It will be argued that this is regrettable and that notwithstanding the bold claims of Government representatives about the potential impact of the Disability Discrimination Act, its value in the area of Higher Education is likely to be more symbolic than real.

Criticisms of the Disability Discrimination Act 1995

Lord Mackay of Ardbrecknish, the former Minister of State at the Department of Social Security who piloted the Disability Discrimination Bill through the House of Lords, variously referred to this legislation as a "significant landmark", a "comprehensive measure" and a "historic advance for the disabled in this country" (HL Deb, vol 564, cols 800-806). However, critics charge that the Disability Discrimination Act is flawed in at least three respects.

First, claims have been made that the Disability Discrimination Act's definition of 'disability' is too narrow. Section 1(1) provides that a person has a 'disability' if s/he has a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities. The Act provides guidance as to the meaning of important terms such as 'impairment', 'long term effects', 'substantial adverse effects', and 'normal day to day activities' so that, for example, people with 'severe disfigurement' and 'progressive conditions' are covered [Sch 1]. However, considerable uncertainty remains, and it is unclear whether a person who suffers discrimination on the grounds that they are suffering from ME, the HIV virus, or some of the milder forms of multiple sclerosis, epilepsy or cerebral palsy, will always enjoy a remedy under the Act. For example, government guidelines provide that a person with such "progressive conditions" will only "be covered from the time they first developed symptoms that affect their ability to carry out normal day-to-day activities" (The Disability Discrimination Act - Definition of Disability, Disability on the Agenda, DL 60 p5) so that the mere diagnosis of their illness is not enough to bring them within the Act. Despite the explanation that a "line has to be drawn somewhere" (Lord Mackay of Ardbrecknish, HL Deb, vol 564, col 801), this definition of disability is likely to create many problems and as Lord Lester has observed, it is 'very narrow and out moded' (HL Deb, vol 564, col 811).

The second criticism of the Disability Discrimination Act relates to the powers vested in the National Disability Council (NDC), the body established to enforce the disability legislation (Part VI and Sch 5). The main role of the NDC is to advise the Minister on matters relating to discrimination against disabled people, but it is significant that this Council lacks the legal enforcement powers of seemingly equivalent bodies in other areas, such as the Equal Opportunities Commission, the Commission for Racial Equality or the Fair Employment Commission for Northern Ireland. Alistair Burt, a former Government Minister for the Disabled, explained that by opting for a Council rather than a Commission, the government wanted to create "a flexible, non-bureaucratic means of tackling incidents of discrimination" and that the Council will provide the government with "valuable assistance," (The Guardian 28 February 1996). This optimism is not shared by those who campaign for the rights of the disabled. Instead, a majority of such people subscribe to Lord Lester's description of the NDC as a "pathetically powerless quango, not worth setting up," which has "no teeth," so that in all likelihood the enforcement of the Disability Discrimination Act's provisions will be as "weak as water" (Lord Lester, HL Deb, vol 564, col 815). In the absence of a strong enforcement body, it is difficult to avoid the conclusion that victims of disability discrimination are less well protected than those who suffer discrimination on account of their race, sex or religion.

Thirdly, an obvious criticism of the Disability Discrimination Act is the fact that its scope is limited. The Act prohibits discrimination against disabled people in employment (though only where there are more than twenty employees - s7), in the provision of goods and services and in the sale or rental of premises . Education, however is excluded from Part III of the Act by virtue of s19 (5), as a result of what Lord Mackay of Ardbrecknish called "special factors" (HL Deb, vol 564, col 803). These "special factors" and the justification thereof, will now be considered

Disability and Higher Education

It would appear that education was excluded from the provision of services which can no longer be lawfully denied to disabled people, on the ground that the disabled already enjoy sufficient protection under existing legislation (The Guardian, 7 January 1997). Lord Mackay of Ardbrecknish pointed out that the government had deliberately sought to "avoid measures which would perhaps conflict with the carefully balanced provisions in recent education legislation" (HL Deb, vol 564, col 800). However, what the Minister failed to point out was that this legislation primarily relates to the education of children of compulsory school age (between 5 and 16 years), so that it is necessary to consider what (if any) provisions protect the rights of the disabled in Higher Education.

The Further and Higher Education Act 1992

From the title of this Act, it is clear that it applies only to the Further and Higher education sector. The purpose of the Act is (inter alia) to establish funding councils for the two sectors, with the responsibility of allocating funds to Further and Higher Education institutions by way of grant (sections 1, 5, 6 & 7). It is this function which is crucial to the duties laid down under the Disability Discrimination Act 1995 (see later). Section 4 of the Further and Higher Education Act 1992, is the only provision which contains any specific reference to the disabled. Under this section, a council may provide education outside the Further and Higher Education sector where it is in the best interests of an individual in its area, if it is satisfied that s/he:

This section fails to impose any obligations on further and higher educational institutions to adapt or to guarantee the accessibility of their courses and buildings. In addition, it imposes nothing more than a discretionary power on the councils themselves.

The Chronically Sick and Disabled Persons Act 1970

The question of ease of access to university premises, rather than that of access to university courses, is covered in s 8 of this Act. It places a duty on both the higher and further educational sectors to "make provision, in so far as it is in the circumstances both practicable and reasonable, for the needs of persons using the [educational] building who are disabled" and in relation to this duty an institution should have regard to the "means of access both to and within the building, and in the parking facilities and sanitary conveniences to be available (if any)" (s 8 (1)).

The wording used in this section, is highly discretionary since it only requires the institution to take action where it is both "practicable and reasonable". Possible factors which are likely to prevent or hinder the adaptation and alteration of buildings which would make them more easily accessible for the disabled include:

the tendency for university buildings to be multi-floored, and hence only accessible by lift or stairs. This would cause particular problems for those disabled students with limited mobility. In addition, the difficulties in complying with health and safety regulations (for example fire evacuation procedures), may add to the justification for not making the buildings accessible; the difficulties of providing car parking facilities adjacent to university buildings. This may be a major problem for a student who has some form of physical impairment affecting mobility.

Of course, there are numerous other reasons for failing to alter buildings for the disabled user. Perhaps the most compelling is that of cost. Significantly, if it would be costly to provide adaptations, an institution may claim that such expenditure is not reasonable under s 8 of the Chronically Sick and Disabled Persons Act 1970. If this is the decision of the institution, due to the discretionary nature of the section, there is little a student can achieve by way of seeking redress under the 1970 Act, and it is interesting to note that s 8 does not appear to have been subject to litigation (Lexis Search). Finally, the 1970 Act may be criticised for its apparent focus on those with physical impairments. Many impairments do not affect mobility, such as a sight impairment, and yet a building may not be readily accessible due to a lack of Braille indicators for floor and room numbers, one change that would be relatively inexpensive to implement.

The Disability Discrimination Act 1995

The Disability Discrimination Act is potentially relevant to the disabled student in two ways: first, under s 30, which relates to 'Disability Statements'; and secondly, under Part II, which covers the institution's responsibilities to its disabled employees.

Disability Statements

The 1995 Act places a duty on each higher education institution to produce what is known as a 'Disability Statement' (s 30). The purpose of the statement is "to tell students and applicants with disabilities what facilities the institution can offer them" (HEFCE Circular 8/96). The Higher Education Funding Council for England also has duties under the Disability Discrimination Act - it is now required to make it a condition of any grant made to an individual institution that the Disability Statement has been produced (HEFCE Circular 8/96). In other words, unless a statement is produced, the institution risks its funding being withdrawn or reduced.

The contents of the statements have been proscribed by the HEFCE in Circular 8/96, and the first Disability Statements should be in place for the academic year 1997/98 (Lord Henley 24 May 1996 Department for Education and Employment Press Release). The contents of the statements cover a wide range of areas and factors they should identify include:

The Circular makes it clear in paragraph 9 that "institutions will continue to decide for themselves what facilities they should offer" although the paragraph also states that "the Council encourages Higher Education Institutions to consider their provision for students with disabilities and plan strategically for future developments"(HEFCE Circular 8/96).

It is our contention that these statements will not, by themselves, change the current position for students with disabilities who are seeking access to higher education. The disability statement is merely informative. It may only assist by highlighting the extent of the disability provision which is provided in certain institutions, with the result that students will be channelled into those universities which indicate a satisfactory level of support. If an institution fails to provide support for existing or potential students there is no means of redress, since the Act fails to place the higher education sector under any duty to introduce measures to assist the disabled, so the student is left without a legal remedy. Even if an institution claims in its statement to make some form of disability provision, it is not clear how this can ever be enforced by an individual student, since the disability statement is provided for the HEFCE.

The only means of sanction, and hence impetus for change, is the potential withdrawal of support by way of HEFCE grants. Once the disability statement system becomes entrenched, and institutions who adopt good policies are identified, it is conceivable that the HEFCE's powers will be expanded to enable reduction in grant funds on the ground of failure to make satisfactory provision for disabled students. Unfortunately for the potential student, this is a change which may never occur and if it does it will, in all likelihood, take some time to come about.

Part II, Disability Discrimination Act 1995

Although it would appear that the higher education sector offers students little by way of the provision of enforceable rights, the Act does apply to universities in their role as the employer of more than 20 staff (Disability Discrimination Act s 7). It is now unlawful under s 5 of the 1995 Act for an employer to discriminate against an employee on the basis of a disability falling within the Act's definition of disability (s 1). To prevent discrimination occurring, section 6 introduces the requirement for an employer to make "reasonable adjustments" to the work-place or working environment to accommodate the disabled employee and to prevent the individual worker being placed at a substantial disadvantage compared to non-disabled workers. Some of the actions which may be necessary in order to comply with this requirement include the requirement to:

The need to make any adjustments to benefit the disabled worker is somewhat tempered by s 6(4) where it is stated that the employer is not obliged to make changes that are not "reasonable" and some of the factors which are to be taken into account in order to assess reasonableness include (inter alia):

Many of the possible changes and alterations within the higher education sector under the Disability Discrimination Act for university employees could have a knock on effect for disabled students, especially where accessibility to buildings is an issue. For example, a disabled member of staff might require adaptations to be made to classrooms to enable him/her to teach effectively. This alteration, whether it reflects a mobility, speech, or hearing impairment, may also assist students with similar impairments. However, when an institution as employer is considering the reasonableness of making adjustments for its employees, there is no formal requirement for it to consider the additional benefits to the students. As a consequence higher education institutions may claim that cost factors preclude them from making the necessary adjustments for a staff member, whilst if the needs of disabled students were also included, this equation would be rather different. It is to be hoped that higher education institutions will take cognisance of this and appreciate the long term benefits of making adjustments for staff and students, rather than being motivated by short term financial considerations.

Part III Disability Discrimination Act 1995

It has already been established that education within the Higher Education sector is excluded from the provisions in Part III, covering access to goods and services. However, many universities are no longer merely focusing on the provision of education for their enrolled students. Faced with severe cutbacks in their funding, higher education institutions are increasing willing to explore new ways of generating revenue. One way has been for universities and colleges to open their doors to the public by acting as venues for conferences, holiday accommodation, sporting events or general public meetings. If a universities premises are so utilised, it will be considered as providing a service as the Disability Discrimination Act, which defines a service provider as a person or body who " is concerned with the provision...of services to the public or to a section of the public" (s19(2)(b)). The Act makes it unlawful for a provider of services to "refuse to provide, or deliberately not provide, to the disabled person any service which he provides, or is prepared to provide, to members of the public" (s 19 (1)(a)). Examples of service provision which are offered within the remit of Part III include:

In common with Part II duties on employers, the service provider is required to make reasonable adjustments to prevent discrimination (s 21). This may involve altering premises to remove physical barriers to widen the provision of services for the disabled although, as with Part II, these adjustments need be no more than are necessary and reasonable. Consequently, factors of cost may once more be relevant in diminishing the potential effect of the Act's provisions. Universities which choose not to make extensive use of their facilities for 'outside' businesses are likely to argue that the costs incurred to meet the Act's requirements are not reasonable, thereby avoiding liability. Thus, the arguments rehearsed in the previous section with regard to the additional benefit to students using university facilities are also relevant to this issue within Part III.

Proposals for Reform

It has been claimed that the Disability Discrimination Act is the "most comprehensive package ever to be brought forward by any government to tackle discrimination against disabled people" (Lord Mackay of Ardbrecknish HL Deb, vol 564, col 806). However, the accuracy of this statement is certainly open to question when one compares Britain's disability legislation with the Australian Disability Discrimination Act 1992. Indeed, it is submitted that rather than Britain being, in Lord Mackay of Ardbrecknish's words, "a world leader in tackling [disability] discrimination" (HL Deb, vol 564, col 806), the United Kingdom has much to learn from other jurisdictions, particularly Australia. The Australian Disability Discrimination Act 1992 adopts a wider definition of the term disability than its British equivalent (s 4) but, most significantly for the purposes of this discussion, it expressly prohibits disability discrimination within the sphere of education. Section 22 of the Australian Disability Discrimination Act 1992 provides that:

However, the Australian Disability Act provides that the disabled may be treated differently if their admission to a university or college would require the provision of services or facilities which "would impose unjustifiable hardship on the educational authority" (s 22(4)).

It is perhaps not surprising that "unjustifiable hardship" is the most common exception to the Act. If a university is required to provide special services or facilities to someone with a disability, so that s/he can undertake their studies (e.g., by providing access to buildings or the provision of hearing loops in lecture theatres), then it will not be unlawful to refuse admission to the student if the provision of these special facilities would impose "unjustifiable hardship." Some of the factors which must be considered to determine whether there is an "unjustifiable hardship" include:

During the passage of the Disability Discrimination Act through the House of Lords, the British Government acknowledged that it had been influenced by "understandable concerns" that the legislation should not be "unrealistically ambitious or unnecessarily prescriptive" and that it should not place "undue burdens" on those charged with the task of implementing it (Lord Mackay of Ardbrecknish HL Deb, vol 564 col 801). It seems reasonable to assume that one reason why the 1995 Act specifically fails to cover Higher Education was the Conservative Government's fear that by doing so, this would incur prohibitive costs. The Australian legislation however suggests that a fair and equitable balance can be struck between, on the one hand, protecting the rights of disabled students, whilst on the other, not committing universities to anything other than a reasonable level of expenditure. Whilst there are no reported cases concerning educational institutions in Australia, case law in other areas (McKenna v Re-Creation Pty Ltd and Ors 1984 EOC 92-100 and Blair v Venture Stores 1988 EOC 92-232) suggests that the duty imposed by the Australian Act on educational institutions is to make reasonable adjustments to their physical environment and to take reasonable steps to provide special services to disabled students, allowing them to complete the necessary tasks for their study. Examples of what might be classified as reasonable adjustments under the Australian Disability legislation would include the improvement of access to buildings, the design of furniture, the provision of equipment (e.g., tape recorders and computers) and the flexibility to change forms of assessment, so that for example, a student with a speech impairment could have the option of submitting written work rather than presenting a seminar paper.

This last example is particularly controversial as it threatens to trespass on what has traditionally been considered to be the area of academic freedom. In the House of Lords, some peers were concerned that the Disability Discrimination legislation could unreasonably fetter the work and freedom of those teaching at Britain's universities. Many of the arguments which were advanced are persuasive (e.g., see the views of Lord Beloff and Earl Russell: HL Deb, vol 564, cols 874-876 and 1983-1986 respectively), but it seems strange that legislation which seeks to prevent discrimination against the disabled could be any more of a threat to academic freedom than equivalent legislation outlawing discrimination on the grounds of sex or race. Moreover, there is little evidence that section 22 of the Australian Disability Discrimination Act 1992 has eroded academic freedom in the corridors and lecture halls of Australia's universities. And finally, it is difficult to see how academic freedom would be put in jeopardy if university authorities were encouraged to adopt modest practices such as ensuring that student pigeon holes are accessible to wheel chair users, assisting the visually impaired to see shapes by painting parts of doors in different colours and avoiding the verbal cancellation of lectures out of respect for those with hearing impairments.

Conclusion

The Prime Minister, Tony Blair, has said that "education is social justice. Education is liberty. Education is opportunity. Education is the key not just to how we as individuals succeed and prosper, but to the future of this country," (Times Educational Supplement, 18 May 1997]. However, according to the Higher Education Statistical Agency's classifications, only 2.7 per cent of students in Higher Education are disabled (The Guardian, 7 January 1997). Commenting on the under-representation of the disabled in higher education, the assistant director of SKILL, the National Bureau of Students With Disabilities suggests that the problem is not one "between applications and admission," but rather one of "people not applying because they don't think the facilities will be there" (The Guardian, 28 March 1995).

The omission of Higher Education from the Disability Discrimination Act 1995 indicates that it is unlikely that this legislation will act as a catalyst for change. Of course if the Disability Discrimination Act was extended to education in the same way as it covers access to goods and services, the rights of disabled people would be far from absolute and universities and colleges of Higher Education would only have been obliged to make "reasonable" arrangements and modifications to their institutions. It has now been officially estimated that it will cost employers on average £200 to accommodate a disabled person (The Times, 3 December 1996), and on the assumption that a similar figure would cover disabled students in higher education, such expenditure certainly does not appear excessive.

A review of the legislation may not be far away. Roger Berry MP, the supporter of an earlier private member's bill on disability in 1993, has recently introduced another bill on this subject. This new bill, albeit only number 12 on the list, is likely to receive at least more parliamentary time than its forerunner. The aim is to establish a commission with the remit of reviewing the legislation on disability issues, including the 1995 Act, and to consider whether new legislation is needed, or amendments inserted into the existing act. The glaring omission of educational provision will clearly be within the commission's consideration, if the Bill is enacted.

The chair of the pressure group, Rights Now, has claimed that "proper civil rights legislation would unlock the potential of millions of disabled people" (The Guardian, 2 December 1996). By failing to extend the Disability Discrimination Act to education, the government is denying the opportunity of academic advancement to many disabled people who are capable of achieving it. In the second century Epictetus wrote "Only the educated are free" (Discourses 2.1). If this is still the case, then in considering access to Britain's universities and colleges of Higher Education, some students are definitely much freer than others.

Bibliography

The Disability Discrimination Act - Definition of Disability, DL 60 1996, Disability on the Agenda, Guidance issued on behalf of the Minister for Disabled People.

1. The vast majority of pressure groups for the disabled had supported the more radical, but ultimately unsuccessful Civil Rights (Disabled Persons) Bill, which had been previously sponsored by Harry Barnes MP. Back to text.

United Kingdom Journals